1. A decedent does not have the capacity to be sued. Without a party defendant, the trial
court lacks subject matter jurisdiction over the case.

2. A dismissal based upon the statute of limitations operates as an adjudication on the
merits. With no defendant in the lawsuit, the trial court lacks jurisdiction to rule on the
merits, including the applicability of the statute of limitations.

3. If a named defendant is dead at the time of the filing of a cause of action, the trial court
is without jurisdiction to proceed and the action must be dismissed without prejudice.

4. Substitution of a special administrator or other personal representative under K.S.A.
60-225(a)(1) is inapplicable where the defendant is dead prior to the commencement of
the action.

Appeal from Lyon District Court; JOHN O. SANDERSON, judge. Opinion filed
November 30, 2001.
Affirmed in part, reversed in part, and remanded with directions.

JOHNSON, J.: The plaintiffs, Richard and Sandra Moore, appeal the district court's
dismissal, with prejudice, of their civil lawsuit against the alleged tortfeasor, Glen Luther. We
affirm in part, reverse in part, and remand with instructions to dismiss the lawsuit without
prejudice.

This case began rather routinely as an automobile collision case. On March 31, 1997,
Sandra Moore sustained personal injuries and the vehicle she co-owned with her husband,
Richard, sustained physical damage when she swerved to avoid colliding with the vehicle in
which Glen Luther was effecting a U-turn on an interstate highway. Moore unsuccessfully
sought recompense from Luther's insurer, State Farm Insurance Company. On March 26,
1999, 5 days prior to the statute of limitations deadline, the Moores filed their lawsuit against
Luther. The petition initially named another defendant, but that fact has no bearing on this
appeal.

The plaintiffs attempted to serve Luther, who was an Iowa resident, by certified mail,
addressed to the residence he had provided at the time of the accident. The return receipt for
the summons and petition indicated someone at that address signed for the documents on April
8, 1999, albeit the signature is illegible.

Unbeknown to the plaintiff, Glen Luther had died of unrelated causes on September 5,
1997. A week later, an Iowa court had appointed Luther's widow, Virginia, as executor of his
probate estate. The Moores were not given notice of the probate proceedings in Iowa. The
estate closed January 30, 1998, and Virginia was discharged as executor. Thus, when
plaintiffs' petition was filed, Glen Luther had died and his Iowa probate estate had ceased to
exist.

Luther's insurer referred the petition to Bradley Russell, an Overland Park attorney.
Despite knowing of Luther's death, Russell entered his appearance and filed an answer on
Glen Luther's behalf in May 1999, specifically stating that he and his firm were "Attorneys for
Defendant." The answer denied that Luther lived at the address on the service of process and
asserted a number of affirmative defenses, including lack of subject matter and personal
jurisdiction, lack of capacity to be sued, and insufficient process. Plaintiffs neglected to
investigate the basis for the affirmative defenses. Russell perpetuated the charade by serving
discovery documents upon the plaintiffs, ostensibly propounded by the deceased defendant.

The plaintiffs first learned of their problem after Russell filed suggestions of death on
July 23, 1999. Three days later, Russell moved to dismiss the lawsuit, arguing that Luther
was not a proper party and plaintiffs did not (and could not) obtain proper service of process.

Plaintiffs attempted to substitute Virginia Luther, as executor of Glen Luther's estate,
pursuant to K.S.A. 60-225. Defense counsel opposed the motion, arguing that Luther's estate
was closed. The trial court agreed and denied the substitution. Russell exacerbated the
situation by informing the trial court that, pursuant to Kent v. Chase, Special
Administrator, 1
Kan. App. 2d 251, 563 P.2d 1103 (1977), the only proper party would be a special
administrator appointed by an Iowa probate court. The trial court, apparently unaware that the
1980 amendments to K.S.A. 59-805 (see L. 1980, ch. 166, § 5) effectively overruled the
Kent
case, withheld ruling on the dismissal motion to give plaintiffs an opportunity to obtain an
Iowa special administrator.

After the case languished for several months, defense counsel renewed the motion to
dismiss. The trial court dismissed the action with prejudice, finding the plaintiffs' claims were
barred by the 2-year statute of limitations.

Plaintiffs attempted to save the case with a motion to alter or amend judgment based
on: (1) defense counsel's misconduct in filing an answer for a nonexistent defendant; (2)
newly discovered evidence; and (3) the argument that dismissal with prejudice was contrary to
the law. At hearing, plaintiffs added the argument that the defense's concealment of Glen
Luther's whereabouts tolled the statute of limitations pursuant to K.S.A. 60-517.

The trial court found 60-517 inapplicable because there was no evidence that defendant
was out of state when the cause of action arose or that defendant absconded or concealed
himself. It also found defense counsel had not engaged in misconduct. Thus, the trial court
denied the motion to alter or amend.

Although the parties present the case as a statute of limitations issue, the immediate
problem is more basic: The trial court lacked subject matter jurisdiction. "An objection based
on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time
on appeal or even upon the appellate court's own motion. [Citation omitted.]" Kincade v.
Cargill, Inc., 27 Kan. App. 2d 798, 800, 11 P.3d 63, rev. denied 270 Kan. ___
(2000).

There is currently no party defendant. A decedent does not have the capacity to be
sued. 59 Am. Jur. 2d Parties § 42, p. 439; see Egnatic v. Wollard,
156 Kan. 843, 856, 137
P.2d 188 (1943). Therefore, Glen Luther is not a proper defendant. The plaintiffs have not
effected the appointment of a special administrator to proffer as a substitute. Without
adversarial parties, the trial court lacked subject matter jurisdiction over the case. "In a suit or
proceeding in personam of an adversary character, the court can acquire no jurisdiction for the
purpose of trial or judgment until a party defendant is brought before it who actually or legally
exists and is legally capable of being sued." 59 Am. Jur. 2d Parties § 41, p.
438. A
dismissal based upon the statute of limitations "operates as an adjudication upon the merits."
K.S.A. 2000 Supp. 60-241(b)(1); see Taylor v. International Union of Electronic Workers,
et
al., 25 Kan. App. 2d 671, 677, 968 P.2d 685 (1998). With no defendant in the lawsuit, the
trial court lacked jurisdiction to make a ruling on the merits of the case. Therefore, we
reverse the district court's ruling that plaintiffs' claims were barred by the 2-year statute of
limitations and, correspondingly, that plaintiffs' case should be dismissed with prejudice.

When the trial court dismissed the action, plaintiffs were attempting to reopen the Iowa
probate proceedings to obtain a personal representative for Glen Luther in order to file another
motion for substitution under K.S.A. 60-225(a)(1). Plaintiffs had argued to the district court
that 60-225 grants them a reasonable time to make their motion for substitution and, under the
circumstances, they were moving with appropriate dispatch to obtain an appropriate party to
substitute. Apparently, plaintiffs were unaware that K.S.A. 59-805(b) provides a means to
obtain appointment of a Kansas administrator for an insured nonresident tortfeasor.
Nevertheless, the parties and the trial court apparently overlooked the question of whether
substitution under K.S.A. 60-225 is appropriate when a named litigant dies before the filing of
the cause of action.

K.S.A. 60-225(a)(1) states:

"If a party dies and the claim is not thereby extinguished, the court shall on motion
order substitution of the proper parties. The motion for substitution may be made by any party
or by the successors or representatives of the deceased party or by any party and, together with
the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon
persons not parties in the manner provided for the service of a summons. Unless the motion for
substitution is made within a reasonable time after the death is suggested upon the record by
service of a statement of the fact of the death as provided herein for the service of the motion,
the action shall be dismissed as to the deceased party."

Because our rules of civil procedure are patterned after the federal rules, Kansas
appellate courts often turn to federal case law for persuasive guidance. See e.g.,In re
Marriage of Larson, 257 Kan. 456, 462-63, 894 P.2d 809 (1995) (citing support for
interpretation of K.S.A. 60-260[b] in federal case law); King v. Pimentel, 20 Kan.
App. 2d
579, 584,890 P.2d 1217 (1995) (looking to federal case law for help in interpretation
of
K.S.A. 60-215). We note that Fed. R. Civ. Proc. 25 is not identical to its counterpart at
K.S.A. 60-225. The federal rule says that the court "may" order substitution, while the state
statute requires the court to substitute the proper parties on a motion. Further, the
federal rule
requires dismissal of the action upon failure to substitute within 90 days, while the state statute
measures the time by reasonableness. See 1 Gard's Kansas C. Civ. Proc. 3d Annot. §
60-225
(1997). However, the differences between the rules do not affect the persuasiveness of federal
case law on this issue.

A federal court would not permit substitution in this case even if the plaintiffs
had
succeeded in appointing and serving a special administrator. Commentators have observed:
"The rule presupposes that substitution is for someone who was a party to a pending action.
Substitution is not possible if one who was named as a party in fact died before the
commencement of the action." 7C Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 1951 (1986). The federal courts have uniformly followed this interpretation.
See
Mizukami v. Buras, 419 F.2d 1319 (5th Cir. 1969) (case dismissed when defendant
died before
lawsuit initiated); Banakus v. United Aircraft Corporation, 290 F. Supp. 259, 260
(S.D.N.Y.
1968) (lawsuit filed 35 minutes after defendant's death "cannot be given life by substituting
parties"); Moul v. Pace, 261 F. Supp. 616 (D. Md. 1966) (wrongful death suit
brought after
plaintiff died void); Chorney v. Callahan, 135 F. Supp. 35, 36 (D. Mass. 1955)
(substitution
of administrator ineffectual when defendant died before suit was brought because purported
action was a "nullity"). Other states having statutes or rules similar to the federal rule have
held likewise. See Gregory v. DiCenzo, 713 A.2d 772 (R.I. 1998) (lawsuit brought
on behalf
of deceased plaintiff void); Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo. App.
1990) (no
jurisdiction over case involving predeceased defendant).

The rationale is that because a decedent does not have the capacity to be sued, an
action filed against a decedent is void at its inception and is incapable of being amended by a
substitution of parties. See Banakus, 290 F. Supp. at 260.

The Colorado case of Jenkins, 800 P.2d 1358, is factually similar and
instructive.
There, Jenkins filed suit against Thomas for personal injury more than a year after Thomas
had died and his estate had been closed. Jenkins served the former personal representative of
Thomas' estate without taking any steps to reopen the estate. Jenkins then moved to substitute
Thomas' estate pursuant to Colorado's version of Fed. R. Civ. Proc. 25. The trial court
dismissed Jenkins' claim with prejudice because he had not substituted a party defendant
within the appropriate period of time. The Colorado Court of Appeals disregarded the parties'
arguments on the merits of the case and determined that substitution was not applicable to the
facts because the decedent had died before the action was instituted. The court then considered
whether the district court had properly dismissed the action and stated:

"Because decedent, the alleged tortfeasor, was dead at the time the action was filed, and
because
the personal representative [of his estate] had been discharged, there was no legal entity named
as a party defendant. Accordingly, since there was no controversy between legal entities, there
was no subject matter to be litigated, and the court was without jurisdiction to proceed.
[Citation omitted.] Thus, the trial court properly dismissed the action." 800 P.2d at 1359.

However, the Colorado Court of Appeals reversed the trial court's dismissal of the action with
prejudice. It held that because of the absence of a proper party, there was no adjudication on
the merits, and the action should have been dismissed without prejudice. 800 P.2d at 1359-60.

We find that if a named defendant is dead at the time of the filing of the cause of
action, the trial court is without jurisdiction to proceed and the action must be dismissed
without prejudice. Substitution of a special administrator or other personal representative
under K.S.A. 60-225(a)(1) is inapplicable where the defendant dies prior to commencement of
the action. The district court properly dismissed plaintiffs' case and properly denied their
motion to alter or amend. However, the matter is remanded with instructions to dismiss for
lack of jurisdiction, without prejudice, pursuant to K.S.A. 2000 Supp. 60-241(b)(1).

The issue of the tolling of the statute of limitations was not properly before the district
court and, thus, not properly before this court. However, we note with approval Syllabus 3 of
Judge Beier's opinion in Yoh v. Hoffman, 29 Kan. App. 2d ___, 27 P.3d 927 (2001):

"Knowingly filing an answer on behalf of a dead person as though he or she is still alive is
fraud. It is analogous to concealing oneself under K.S.A. 60-517 and tolls the statute of
limitations. It also would excuse noncompliance with the otherwise jurisdictional time limit of
the Kansas nonclaim statute."

Affirmed in part, reversed in part, and remanded with instructions to dismiss without
prejudice.